Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680-1810

Chapter 1: Justices and Lawyers in England, 1680–1714

That Estate of Men which be Called Worshipful

—

SIR THOMAS ELYOT

, The Book Named the Governor

In 1749 a former county justice named Henry Fielding published a very long novel entitled A History of Tom Jones, a Foundling. Among the many character studies worked into the tale, none is more memorable than that of Squire Western, the country justice. Drawn from Fielding’s own memories of the county bench, Western epitomized the qualities of the independent country gentry. The great are deceived, wrote Fielding, if they imagine they have appropriated ambition and vanity to themselves. Western, the petty tyrant of his county, was a man whose arrogant self-importance was nonetheless rendered admirable by his sturdy defense of virtuous independence. Remonstrating with him over a decision, his sister cattily observed that a London magistrate would never have ruled so. Western responded with the classic dictum of the Country justice: Like enough, he cried. It may be so in London; but the law is different in the country.¹

By Fielding’s day the bucolic independence of the country gentry had become part and parcel of the mythology of England. In another novel, Joseph Andrews, Fielding had already captured the nature of the vertically organized social order over which the gentry supposedly still presided. Society was divided into ranks that later generations would call classes. But in Fielding’s day the nature of social relationships was thought of as a picture of dependance like a kind of ladder. In a famous passage, Fielding summarized the patronage relationships of the greater and lesser residents of the counties in this way:

Early in the morning arises the postillion, or some other boy . . . and falls to brushing the clothes, and cleaning the shoes of John the footman, who . . . applies his hands to the same labours for Mr Second-hand the squire’s gentleman; the gentleman . . . a little later in the day, attends the squire; the squire . . . attends the levee of my lord . . . my lord himself is seen at the levee of the favourite, who after his hour of homage is at an end, appears himself to pay homage to the levee of his sovereign. Nor is there perhaps, in this whole ladder of dependance, any one step at a greater distance from the other, than the first from the second: so that to a philosopher the question might only seem whether you would chuse to be a great man at six in the morning, or at two in the afternoon.²

A curious combination of feisty independence of mind, landed rank, and deference to one’s social superiors made English country life what it was. Yet by the eighteenth century social reality in the counties was not a simple picture of rural gentlemen presiding over their dependents. From the mid-seventeenth century on, policies of the central government disrupted the independence of many localities, imposing a greater degree of control on the counties than before. Moreover, one of the areas where this change intruded most strongly was in the courts of law. Imagine the chagrin of a proud Western when berated by Judge Hyde at the Hereford winter assizes in 1663. To the assembled gentry the judge acidly ordered that if there be any lawyer a justice of peace sitting on the bench . . . the rest of the justices ought to acquiesce to his judgment and opinion therein, and not (as is commonly practised) put [it] to the vote of many ignorant justices on the bench according to their fancy and opinion.³

Such an incident illustrates, as well as any, the changes that occurred as a more professional brand of law was brought into the counties. Understandably, the gentry was not always pleased with such orders, and even less so because its own character and composition were changing at this very moment. Just as the aristocracy of England had begun to lose political and social power to the gentry in the early seventeenth century,⁴ so by the end of that century the old gentry itself was declining. Justices of the peace were no longer simply local squires, nobles, and landowners. England by the 1690s was embarked on a mercantile adventure, and the rise of merchants swung the balance of monied power once and for all out of the hands of the old landed gentry. New men—merchants—began sitting on the county benches, much to the chagrin of older families. Despite the picture drawn by Fielding and others the independence of the gentry in dealing with county problems from the bench of Quarter Sessions was seriously circumscribed by 1714. That circumscription was part of a larger story which involved a nation in the struggle between local traditionalism and national cosmopolitanism. The law became one of the central arenas in which very different notions of what the law was, and what men who were officers of the law ought to be doing, battled for supremacy throughout England from the local to the national level. Moreover, the proper notion of what law was, was itself intimately bound up with cultural definitions of what society and social relations along the ladder of dependence were supposed to be like.

The ladder of dependence that Fielding described defined the proper social relations of Britons in the county and the nation at large. Yet in any society social relations and the norms that govern conduct are never merely personal, one-to-one concerns. One of England’s boasts, that England was a nation of laws, and not of men, was a truism for some, a saw for others, and an empty bit of rhetoric in the opinion of yet others. But in so saying, Englishmen who subscribed to this notion were suggesting that not arbitrary power but the predictable and equitable application of law—ancient, customary, common law—determined the fate of an Englishman. Whether the administration of laws actually was equitable and fair is not the concern here. However, one can scarcely begin a discussion of justices of the peace and lawyers in any culture without also considering law, and especially what Englishmen thought the law was.

Law is broadly defined as a species of social control. But this positivist, utilitarian description of what laws do does not in fact satisfactorily convey understanding of what law meant for seventeenth-century Englishmen. The common law was the pride of those Englishmen who were fond of comparing their country’s customs and ancient institutions with those of more despotic and less happy nations. But besides familiarity with customary law or chancery decisions where discretion held out some hope for redress when remedies at law failed, most Englishmen (even the humblest) were also aware of statutory laws defined by Parliament, other kinds of law that governed through church courts and procedures, and above all these the king, the fountain of justice in the realm. The proper relationship between the various types of law and whether the king was above or subject to an even deeper or higher law would be hammered out in the controversies that wracked seventeenth-century England. Beyond all of the specific areas and types of law most Englishmen, like most descendants of medieval rural European society, had a sense that laws of whatever sort, though made by men, ought to reflect in some measure the laws of God. Nothing would be more erroneous than to suggest that the law, whether in the Country or elsewhere during the late seventeenth century, had already been disconnected from this notion, inherited from the classical, and more especially, the medieval discussion of natural law.⁵

To the modern student, thoroughly schooled in the dicta of legal realism and convinced by Justice Holmes’s statement that the law is not some brooding omnipresence in the sky, such transcendent notions of what the law was, or was supposed to be, seem remote. To the casual observer it may seem that the daily routine of affairs in county life had little to do with the lofty theories of the Schoolmen or of the constitutional theorists of the day.⁶ Yet, too vigorous a pursuit of such hard-headed attitudes risks impugning the integrity of a local community’s sense of itself. For precisely because they were geographically and mentally distant from the centers of power and novelty, Country justices clung to older notions of societal relationships and the awesome quality of the law in spite of, even in defiance of, vast social, economic, and demographic changes.

While these changes were taking place, a remarkably backwardlooking search for a usable past and an attachment to a traditional definition of the law characterized the mentality of local Englishmen. The most widely used publication for justices of the peace in the 1680s illustrated this. Published in 1681 as an update of Michael Dalton’s Countrey Justice (1618), Richard Chamberlain’s Complete Justice continued to advocate that the law be considered a species of activity very much like that carried on by the church—both were designed to secure the peace. Whether for peace of spirit and soul or for peaceable relations with others, the Government of this Kingdom consists of two parts, vizt. first the Laws Ecclesiastic for the peace of the Church, and Laws Civil, or Temporal, for the peace of the Land.⁷ The emphasis on peaceable relations in the kingdom reflected both St. Augustine’s claim that peace was the precondition for all other civilized action and England’s bloody recent past.

A clear notion of what law is was expressed by Chamberlain’s section entitled A Compendious Charge to be given at the Quarter Sessions. In this piece, Chamberlain reveals a very astute mind at work, one which saw how closely the peace of the county depended not merely on control and punishment but on the internal reformation of character through education and work. Chamberlain suggested to his justices that doing justice under the laws was no simple matter: "Now seeing Justitia est duplex viz. The punishing part, and the preventing Justice, the premisses only touching the former, therefore the conclusion shall point something at the latter, with a direction how it may be effected. We find by experience, that it is not frequent punishment that prevents offences; praestat cautela, quam medela, it is better preventing, than redressing offences. The county justices, Chamberlain believed, should recognize that preventative justice lay in three things: first, education of youth, which ought to be by instruction in the knowledge of Religion, and by learning some Trade in their tender years, so as there should not be an idel person, or a Beggar, according to the Scripture, Deut. 15. 4; second, the justices needed to enforce the already sufficient laws against idleness; third, justices ought to refrain from pardoning too frequently, which make many offend in hope. This preventing Justice is better than punishing Justice; as obedience is better than sacrifice; for in sacrifice we do but repent of sin, but in obedience we prevent sin; and it is better preventing than repenting sin."⁸

The persistence of the idea that offenses against the laws of God and society were sin marks one of those important areas in which Squire Western’s dictum held some truth—the law continued different in the country. The precise expression of that sense of being different, however, was quite complex. Gradually, a devotion to old-fashioned virtues, a sense of sin, and a dedication to doing one’s duty to God and one’s betters and dependents were acknowledged by seventeenth-century Englishmen as the special preserve of the Country.

During the seventeenth and eighteenth centuries, the terms Court and Country acquired political definitions as catchall terms denoting groups alternately in and out of power. But the original meaning of the words derived less from politics than from a cultural understanding of what was right and wrong with life in Albion. Court and Country were symbols that summoned up a host of associations by which the user could identify what he believed in, who his friends or his enemies were, and what made his world intelligible and significant. As Perez Zagorin points out, Nicholas Breton’s tract The Court and the Country (1618) identified the Country as the symbol of simplicity and wholesome pleasures based on religion and respect for tradition. The definition of a Country man was one who not only stood for time-honored values and institutions but also served his country (originally this meant his county) out of a sense of duty and public spirit. This sense of duty, and the moral, religious tenor of private life that presumably informed and nourished the sense of duty, the Country called virtue. This term was also a verbal symbol, combining fairly secular notions of civic duty borrowed from the Renaissance with more squarely Christian notions of moral behavior and obedience to the law, even while depending through faith alone on the promise of the gospel. If the Country never bothered to define precisely the sources and implications behind its notion of virtue, that was hardly surprising. They did not seem vague to one raised in the Country tradition.⁹

The Country did know, precisely, what virtue was not. To identify the threats to virtue and the source of imminent doom they pointed to the Court. When the gentleman of Parliament in 1625 called himself neither Courtier nor Lawyer but a plaine Countrey Gentleman, his symbolic identity was immediately clarified for his listeners. The Court was associated with the monarchy and with those of nobility and their minions who did the bidding of the Stuarts. This aspect of the definition never completely disappeared, and it was still quite viable when Virginians in 1776 revived it with a rather piquant use against otherwise Whig Britons. But in the interim the writing of republican theorists during and after the Civil War—especially that of Harrington—had changed the definition in other aspects. By the late seventeenth century the Whigs under Lord Shaftesbury were reaching back into Harringtonian thought to justify their ideas and excoriate the political faction of Tories under Lord Danby. The added notion used by these neo-Harringtonians was that the Court represented corruption, which threatened the independent thinking, action, and care of dependents by the Country gentry. The abuse of the natural relationships on the ladder of dependence was a crime that the Court excelled in committing, according to Whig writers. Whether by buying the support of a person in Parliament or by suborning the judiciary by placing loyal favorites on the bench, the Court destroyed the possibility for sober, thoughtful action by men whose rightful duties and virtues on behalf of dependents and the nation was short-circuited. The means of buying men came, the Country said, from new, mercantile wealth.¹⁰

Ironically, even as the Whigs refined this definition, they themselves came to power, and the original, cultural definitions of Court and Country reemerged. Never really political identification tags, the terms Court and Country increasingly meant those who exercised power and aggrandized new wealth and those who berated and scorned them for so doing. The dilemma of Country partisans who sought to perpetuate their ancient and reformist ideas was simple and discouraging. As Pocock says: They could not take office without falsifying their own ostensible values.¹¹ By the late seventeenth century, then, Court and Country were terms with political overtones but not terms synonymous with either Whig or Tory factions in English political life.

The Glorious Revolution of 1688–89 ended the overt threat of monarchic Court dominance and appeared to guarantee a limited monarchy in the Protestant line, but the troubles of the Country were far from over. Indeed, between 1690 and 1714 the death knell rang for the old-fashioned, pastoral England, so lovingly described by the Augustan poets, the England whose virtue, long since departed, was so eloquently mourned by the Scriblerians and the grandest apologist of the ancien régime, Henry St. John, Lord Bolingbroke. Even as John Locke and other Whig theorists justified revolution in the defense of property and liberty, the rise of mercantile entrepreneurs helped to dissolve the ability of the gentry to act responsibly toward their dependents. The tradition of natural law came to be used in a perverse way to terrorize the hapless poor, caught between traditional social relationships and occupations and the less personal, less agrarian future toward which Britain was now committed. Protests against the success of a Whig Court presided over by Sir Robert Walpole and the Pelham-Holleses had little genuine impact. By the time Fielding wrote inexorable economic and social change had long since altered British rural life.¹²

Why, then, the continued paean to a supposed golden age of English virtue? What role did the gentry who ruled the counties from the bench as justices of the peace play in this on-going criticism of modernity, and why did the Country see lawyers as the allies of the enemy—the Court, increasingly composed of the mercantile clique whose interests Whig policies protected? Most important, what implications did this cultural battle between Court and Country hold for the transplanted Englishmen returning from Virginia for education and trade at the end of the seventeenth century? The answers to these questions lie in the nature of county law and in what the gentry sitting as justices of the peace actually did. The shrinking sphere of influence left them by the legal reforms of the Commonwealth and Restoration periods must be understood if we are to appreciate the potency and the nature of the myth of the Country tradition.

Court and Country competed for adherents and existed side by side in England, and Anglo-Americans returning to England in the 1680s and 1690s encountered a culture straining against the developments of trade, mercantile success and international political importance. In a very real sense the Country tradition played a singular role both for Englishmen at home and for those from Virginia. The tradition was at once myth and reality. As reality, it was rooted in a rural, agrarian experience that was immediately familiar to Virginians. As myth, it represented the way in which insecure Englishmen grounded themselves in a more familiar past while entering the future. One can argue that the adoption of an old-fashioned mode of thought merely facilitates change while denying that change is happening. But the invocation of Country notions had a more potent legacy than that. By 1714, at least for Englishmen in Virginia, county life and the Country tradition represented the reality far more ably than did a rapidly changing, mercantile Britain herself.¹³

In both England in 1689 and Virginia in 1776 the defense of Country virtues was led by lawyers. This paradox—the allies of the Court fashioning the instruments by which the Country fought to vindicate its ideas—can only be understood in Virginia by first reviewing what happened between justices and lawyers in England.

Justices and the Country

Courteous Reader, The great Antiquity of Justices of Peace in this Kingdom . . . and the . . . continuing their Authority hitherto; speaks both the Utility and Necessity of that weighty Office: how it hath been established and rendered more ample and extensive by the grave wisdom of our Law-Makers. So wrote Chamberlain to the purchasers of his 1681 manual, The Complete Justice. No one would have quarreled with him, but some might well have quoted William Lambarde’s 1581 query: How many Justices, thinke you, may now suffice (without breaking their backes) to bear so many, not loads, but Stacks of Statutes, that have .. . been laide upon them? The duties of the local justices were indeed broad, and perhaps a concern over the local squires’ inability to live up to all their duties prompted the central government during the course of the seventeenth century to direct justices toward overseeing administrative and petty criminal matters alone. Civil causes had never been the chief concern of the Courts of Quarter Sessions, and felonies that involved the possible taking of life or limb were dealt with not only at sessions but at the meetings of the Courts of Assize. In former days justices had exercised the power to execute felons. By the Restoration, however, this practice was dying out, and its demise was urged upon the local courts by the lawyers and judges of Westminster, who preferred to consider such grave causes at the procedurally more rigorous sessions of assizes. There the judge exercised full sway, and local considerations would work neither for nor against a putative felon.¹⁴

Justices of the peace were theoretically appointed by the king, the source of all law and magistracy in the realm. In practice the lord chancellor exercised this patronage power. In every county the lord lieutenant acted as the custos rotulorum, recommended names to be added to the Commission of the Peace to the Chancery, and suggested men who might be left off the list if he felt them incompetent or politically unsympathetic to the crown. A local bishop, a group of justices, even a single powerful noble acting as a justice might exercise his patronage over the commission. No less an authority than Sir Edward Coke had opined that the Commission of the Peace constituted such a forme of subordinate government for the tranquillity and quiet of the Realm, as no part of the Christian world hath the like, if the same be duly executed.¹⁵

The due execution of the office involved those men elevated by patronage to the bench to oversee the affairs of the county. Between fifteen and twenty justices sat at the quarter sessions meetings, which were ordained by statute to sit four times a year in the weeks following Epiphany (January 6), Easter, the Translation of St. Thomas the Martyr (July 7), and St. Michael’s Day (September 29). Although leet courts still met in the towns of England and courts baron still functioned under the eye of the nobles, in fact by the 1660s the quarter sessions court had become the central legal institution of the county. In the fifty-two counties of England and Wales the old hundreds or divisions within the county had become the sessional divisions of individual groups of justices. By a means which no one can account for, so-called petty sessions were often held during the year in these divisions when the Court of Quarter Sessions was not sitting.

Eventually, the Privy Council formally directed justices to hold divisional sessions to investigate petty nuisances. No jury trials or offenses requiring a grand inquest could be dealt with here. But these local sessions did appoint two or more overseers of the poor and look over their accounts, deal with unlicensed alehouses, investigate reputed parents of bastard children, control servants trying to leave their employers, and punish forcible entry and riots, idle women, the killing of game or stealing of eggs, and rather more serious crimes like rick burning. The justices had as their officers of enforcement the undersheriff, the high bailiffs of hundreds, franchises, and liberties, and deputy-sheriffs or foot bailiffs. By 1689 the sheriffs, high bailiffs (or town constables formerly appointed by the court leet of a village or town) were appointed for one-year terms by quarter sessions to hold the County Court or Sheriffs Court. Small debts under forty shillings could be recovered here, and outlawry still declared against malefactors. The high sheriff, appointed by the crown, ordinarily did not bother with these sessions, but instead directed his attention during his year in office to the affairs of the quarter sessions of the peace.

Technically, justices could not refuse to sit at the sessions for their counties, although in practice it was becoming increasingly difficult by the 1660s to get nobles and the greater gentry to serve. By statute a justice had to be of the county where he sat, possess an estate of not less than £20 per year (quite a large sum in 1439 when the law was passed [18 Henry 6, c. 11, secs. 1 & 2]), and take out his writ of dedimus potestatem, which empowered him to act. He did this by going before the clerk of the peace, taking the oath of office, and paying the required fees, a ceremony which was largely neglected and seldom enforced. Apparently, an English justice (unless a peer of the realm) was to be paid four shillings a day for attendance, but only eight justices could be so paid. An Elizabethan Statute of Labourers gave five shillings a day out of fines imposed, but it is not known to what extent justices actually were paid from such sources in the seventeenth and eighteenth centuries. By 1791 stipendiary, or paid, justices had become the norm in Middlesex County, but the rule for the country at large was that justices served for no fee, or at best, for next to nothing.¹⁶

The convening of that court was an occasion of high spectacle and drama in every shire town four times a year. Yet by 1689, of the supposedly three thousand justices in England and Wales, only about seven hundred to eight hundred responded to the writ of venire facias directed to the sheriff. A total of fifteen days was allotted to the justices who did sit for summoning jurors by the various writs. The quarter sessions opened with a solemn procession, the justices escorted by the sheriff and bailiffs to the shire hall where the clerk of the peace read the writ of summons and produced both the lists of jurors and officials ordered to attend and the calendar of prisoners. Once roll was called and fines for nonattendance were imposed, the justices were handed the inquisitions, recognizances, and examinations, juries were sworn, and a charge delivered to the juries. Meanwhile, the clerk of the peace compiled the names of the jurymen for the foremen, and bills of indictment were drawn up to be considered by the Grand Inquest of the County. While the grand jury deliberated, the justices appointed a county treasurer, inspected accounts, assessed wages for laborers and servants, and fixed the prices for ale and beer sold in the ordinaries. Usually the court adjourned for a short time at this point, and after convening again the grand jury’s bills were heard and petit jury trial of minor offenders commenced. Felony was supposed to be considered first, but in practice these serious crimes and their supposed perpetrators were handed over to the Courts of Assize. Against lesser offenders processes were called, and if no voluntary appearance was forthcoming, a writ of capias was issued, followed by writs, as necessary of sicut alias capias, exegi facias, and finally, all else failing, outlawry.¹⁷

The four days usually spent at quarter sessions wound their way from petty criminal matters through defendants pleading not guilty and traversing their indictments. Usually the justices ordered a defendant who contested his indictment to appear at the next court and to enter a recognizance against his appearance. Turning next to those cases held over from previous sessions, the justices listened as defendants’ lawyers argued their causes. The last day of sessions was devoted to administrative matters. These duties of the justices centered about the enforcement of the poor laws, and included licensing itinerant beggars, returning those unable to work to their place of birth, and trying to distinguish between sturdy beggars and the impotent poor, sending the former to prison and requesting information from the overseers of the poor on the latter. Every parish was to provide funds to the overseers with monies levied against every freeholder or occupant of property in the parish. From this fund children, the able-bodied unemployed, and the aged and infirmed were supposed to benefit. Other parishes in the hundred could be assessed to make up the rate for a parish too poor to pay for its indigents. And, if an able-bodied laborer would not work, justices after the 1590s were empowered to commit him, and disorderly persons, mothers of illegitimate children, and vagabonds, to the house of correction.¹⁸

This round of duties, which was seen to four times each year, provided a chain of information and a common linkage among the various elements in the ranked social order. Anyone who attended the sessions certainly learned the latest gossip and the crises, scandals, and novelties that had occurred in the county. Yet the gradual but inexorable growth of central control over legal affairs from the Tudor period onward meant that quarter sessions were bound closely to the Courts of Assize, not only in the types of cases heard but also by a large degree of oversight. Moreover, as Assizes increased in significance, quarter sessions necessarily diminished as a central spectacle and a place where information was retailed. The sessions were still important, of course, but the trials at the six circuits of assizes were far more dramatic. The judges from the king’s bench at Westminster sat on those circuits, which grouped the counties together by contiguity. To these sessions came felons, on trial for their lives. Procedurally, assizes were far more strict than sessions, and the judges did not hesitate to order grand juries to refrain from searching statutes to find reasons to indict and to resist the temptation to independent actions of any sort. On the other hand a felon standing trial was hampered by rules that allowed no defense witnesses, prohibited perjury charges from being leveled, and forbade counsel in felony and treason cases. Although by 1760 some judges in assizes did informally allow lawyers to answer questions of fact for an accused felon, not until 1836 was counsel allowed in all cases of felony. Assize sessions also dealt with some of the same petty crimes that occupied quarter sessions, and the local justices of the peace who sat on the grand jury at assizes were quick to take notes for their own later use from the methods displayed by the professional judges of this superior court.¹⁹

Assizes were the courts where civil causes were often heard, brought to this relatively local spot by writ, thus saving the litigants the arduous journey to London to argue their causes before one of the three common law benches there. The Restoration period was notoriously litigious, and the judges of assizes regularly sat as a nisi prius court, deciding with a jury those actions brought from exchequer, common pleas, and king’s bench by writ of postea. The bulk of these cases dealt with debt, ejectment, and trespass. Action on the case was the outstanding single cause heard, and an occasional assumpsit rounded out the causes which were largely matters of dispute over contracts and debts. In these cases the bystanders could see one of the most striking differences between assizes and quarter sessions, for civil causes were technically involved and notoriously expensive, and for both reasons, local residents watched with awe and suspicion the arguments and machinations of the lawyers.²⁰

Lawyers and the Court

To speak of lawyers in England is, of course, somewhat inexact. Throughout English history men functioned as officers of the court at various levels of law, doing some of the work one now associates with the word lawyer. By the Restoration the two levels of lawyers known today in England were clearly distinguishable—barristers and solicitors. Barristers were graduates of the Inns of Court, and only they were permitted to plead a cause within the bar. Solicitors prepared the cause and conducted business outside of court, but they could not plead. In actual fact one should also distinguish between solicitors and attorneys, although the distinction was becoming blurred by the seventeenth century. The law of 1605, which attempted to curb abuses among attorneys, lumped them together with solicitors, who had begun as assistants to attorneys but whose name has come to include both of the old offices. In both instances the duties of those officers were confined to drawing up papers and preparing the cases of their clients, and indeed, clerical work was the strength of those gentlemen, who often became the clerks of the peace in the counties. When they did so, they were forbidden to practice, but could and often did get partners to do their casework for them. The barrister, on the other hand, worked largely in the Courts of Assize rather than in the county and was better educated than his solicitor. When he appeared as a local gentleman sitting on the bench, he represented something of a threat to the rustic gentry at quarter sessions. It was no mere accident of language that these men were graduates of the Inns of Court. The proximity of the Inns to the king’s court was purposeful, and Temple Bar and the area surrounding it quickly became synonymous with the legal profession, whose antiquity and perhaps ambiguous reputation Spencer conjured up when he wrote:

Those bricky towers

The which on Themees brode aged back doe ride,

Where now the studious lawyers have their bowers,

There whilom wont the Templar Knights to bide,

Till they decayed through pride.²¹

Far from being proof of having been a studious lawyer, attendance at the Inns had become by the early seventeenth century a means of polishing rough Country sons of the gentry into Court gentlemen. Indeed, the aristocracy’s sons acquired their sophistication at the Inns from the 1580s until the 1630s. The Inns were well known for the revels and masques intended to prepare the gentleman for life as the king’s servant at court. Legal learning at these institutions was pursued seriously during Tudor and early Stuart monarchies, but declined sharply thereafter. By the Restoration the Inns had resumed their notoriety as centers of cosmopolitan taste and revelry, but examinations for the call to the bar had become a fiction. Questions were put to the student in stock words; readings and exercises were abandoned after 1680. If they intended to practice, most serious students of the law learned by reading for two or three years in a barrister’s chambers. Attendance at the Inns was the prerogative, at first, of the sons of the aristocracy and, by the Restoration, of those of the greater gentry, for little money was ever spent on scholarships for poor applicants.²²

Barristers who did go into practice made their living in circuit work at assizes. In those courts they found the litigation open to them in a less authoritarian atmosphere than in criminal causes where judges ruled with a heavy hand. It was probably the close relationship of barristers to the judges of Westminster at assizes that had prompted Judge Hyde to suggest that local justices heed the superior opinions of a barrister sitting on their bench. Such advice was not very palatable to local squires, probably not even to those lucky enough to be able to send a son to the Inns for learning and polish. Even more so, attorneys and solicitors were viewed by gentry and people alike as a vile species, bent on making money from other men’s woes. Local justices had to be on their guard with these lawyers, for they could be reprimanded for high-handed behavior upon a writ of supersedeas, and a writ of certiorari could remove the proceedings of a county decision to a higher court. But more often, local squires feared the troublesome attacks that were spurred on by local solicitors, who might well object, for example, to a justice’s handling of unlicensed alehouses. Despite his good intentions, as one contemporary reported, he finds himself surrounded with numbers of pettifogging attorneys and solicitors, who watch his steps, and if there happens the least flaw in the method of drawing up and managing the proceedings, he finds himself obliged to attend a certiorari in the King’s Bench.²³

Moreover, despite the vagaries of constitutional government in the seventeenth century under Stuart and Commonwealth the local gentry continued to hold lawyers in low esteem, be they Cavaliers or Roundheads. Antilawyer sentiment was a tradition in English life and lore and had been so since Geoffrey Chaucer’s day, at least. The Englishmen of the seventeenth century maintained that tradition precisely because those individuals who practiced law were identified as belonging to the Court interest. As John Morrill has demonstrated, local squires were not fooled by the use of anti-Court rhetoric by men ambitious for power. Despite the reforms proposed under the leadership of Commonwealth lawyers seeking to put their own house in order, no very noticeable improvement in public opinion regarding lawyers was forthcoming. Indeed, so fearful of the public’s attitude were lawyers that some ten years after the end of the Commonwealth they panicked when confronted with what they thought was imminent slaughter.²⁴

Into the palace yard near the Courts there galloped one morning a mad cow. Those inside the building saw only the swords drawn in the yard, and some paranoid barrister shrieked that the Fifth Monarchy men had come to murder the lawyers en masse. The resulting pandemonium that gripped the fleeing serjeants and hastily disrobed barristers speaks most eloquently of the continuing, uneasy relationship between lawyers and the nation.²⁵ This is all the more remarkable given the attempts of many lawyers during the Puritan ascendancy to effect major legal reforms, including the abolition of Star Chamber and a concerted attack on the chancery court, perhaps inspired by John Selden’s well-known, acid remark Equity is a roguish thing, depending on the Chancellor’s foot.²⁶

Despite the alliance of many lawyers with Parliament against the claims of Stuart prerogative in the ship-money controversy and the attack on those courts that seemed to undermine the common law, most lawyers joined the royalist cause when the crisis finally broke. In one of the many paradoxical turnings of history, royalist lawyers found it a simple trick to argue that they were the real champions of the limitations that common law imposed on Englishmen and that the more radical sectarians like the Levellers, the Puritan faction, and the Parliament forces at large represented usurpation and tyranny. Initially, of course, in the early seventeenth century opposition to lawyers had sprung from the Stuart court itself against Sir Edward Coke and his allies, who seemed all too ready to put the common law in the way of the king’s prerogative. But by the end of the century that opposition had been rendered irrelevant by the events of 1688–89, and no one continued the attacks of the extremist sects of the Revolution. Once the Restoration had been accomplished, no one seriously challenged the legal profession, nor had anyone brought forward serious proposals for much-needed reforms. Despite the appalling lack of real learning going on at the Inns, no one suggested that these private societies should be challenged to improve their performance of duties to the public. Neither were there any regulations to control the swarms of ambitious solicitors excluded from the Inns. By a statute of 1729 (2 Geo. 2, c. 23) a start was made in reforming the latter branch of the legal profession, and by 1739 the Society of Gentlemen Practisers in the Courts of Law and Equity established fees for services, set requirements for training, and prescribed for disciplinary actions against unscrupulous lawyers. The reforms were late in coming and did little to change the negative attitude of most Countrymen about the legal profession.²⁷

In the end the Whig lawyers of the Restoration era managed to salvage part of their reputation only because they came down on the right side of the constitutional crisis of 1688–89. It is tempting to think that those eminent barristers and judges who played so important a role at that time had a clear notion of what they were about. More probably they were as insecure as their Tory opponents as to what the future should hold. Beyond the desire to keep a Catholic from succeeding to the throne the Whig lawyers were not entirely sure of themselves. Events proved, nonetheless, that in order to consolidate the gains of the Revolution, support for William and Mary had to be guaranteed at all levels of English life. The resistance of the